Are illegal immigrants better or worse off now than they were a year ago?

Illegal immigrants suffered disillusionment dashed hopes when President Obama broke promises on immigration reform, then endured the defeat of the DREAM act, a sort of compromise to grant some relief to the children they brought, children too young to know better, who grew up here without a say in the matter. Their best hope and standard bearer who spoke so passionately and eloquently of the plight of the undocumented, as it turned out, lacked either the courage of his convictions or the political will to see it through.

Little victories

Although he fought and won little skirmishes against Arizona, Alabama, Georgia, Indiana and Utah, getting courts to block the worst parts of their harsh immigration laws, the president has lost the war. Thus far, he has not launched the all out, D-day attack to get comprehensive immigration reform we all expected. Putting out little bush fires against state laws shows that his heart is in the right place but the best opportunity to change the immigration landscape has escaped his grasp; he has lost the house and came close to losing the senate. And now the president’s hands are tied. It is an election year. He has Hispanic roundtables and gathers Hispanic celebrities at the white house, but that will do nothing more than keep some Hispanics in his column come Election Day 2012.

Because of inertia and inaction on the federal end, states have moved in to fill the void. According to the National Conference of State Legislators (NCSL), in 2011, state legislators introduced 1,607 bills and resolutions relating to immigrants and refugees in all 50 states and Puerto Rico. This is a significant increase compared with 2010, when 46 states considered more than 1,400 bills and resolutions pertaining to immigrants.

Tougher state laws in 2011

Five states—Alabama, Georgia, Indiana, South Carolina and Utah—crafted omnibus laws following the example of Arizona’s 2010 bill, SB 1070. These laws include provisions that: require law enforcement to attempt to determine the immigration status of a person involved in a lawful stop; allow state residents to sue state and local agencies for noncompliance with immigration enforcement; require E-Verify (an employment eligibility verification system); prohibit the harboring or transporting of unauthorized aliens; and make it a violation for failure to carry an alien registration document. Alabama’s HB 56 also requires schools to verify students’ immigration status, but the provision was enjoined by the U.S. District Court.

Obama has filed court challenges based on preemption and civil rights against all five of these new state laws. No encroachment on federal authority over immigration, no matter how small, escapes the full, frontal legal attack from the Justice Department. It’s like taking away the club from the bully pummeling your friend but doing nothing to help him escape his tormentor. The real problem is illegal immigrants still don’t have a path to legalization. Prosecutorial discretion and deferred deportation are immigration candy not the main course.

Meanwhile, ICE strike force to combat crimes associated with illegal immigration, have deported more people in 2011 than at any time in history. As in previous years identification/driver’s licenses and employment remain the top issues. Immigrants for the most part are denied driver licenses; sex offender registries in some states include a requirement of proof of citizenship or immigration documents. Montana now requires the Department of Motor Vehicles to use the SAVE program to verify a driver's license or an ID applicant's lawful presence. Eleven states—Alabama, California, Georgia, Indiana, Louisiana, North Carolina, North Dakota, South Carolina, Tennessee, Utah and Virginia—enacted legislation on E-Verify. Florida added an E-Verify requirement by executive order. Seventeen states now have an E-Verify requirement.

A few bright spots

In education, Connecticut and Maryland will permit unauthorized immigrant students to be eligible for in-state tuition. Twelve states now have enacted legislation that typically conditions eligibility for in-state tuition on attendance and graduation from a state high school and admission into a college. California now offers financial aid as well to unauthorized immigrants. (See NCSL’s publication on in-state tuition.)

In the health and public benefits categories, California revised its Fostering Connections Act to include additional guidance on immigrant children in the care of Child Protective Services (CPS). Indiana established a county domestic violence fatality review team and provides migrant child care if domestic violence is found. Nevada and Connecticut created state health insurance exchanges and permit lawfully present immigrants to participate. California allows lawfully present immigrants to be eligible for Medicaid Coverage Expansion (MCE) and the Health Care Coverage Initiative (HCCI).

Anyone familiar with the political process knows that illegal immigrants will see no improvement in the situation this year, as politicians preach to their choir. Real change will require an effort like Reagan‘s in 1986 when amnesty was granted with support from both political parties.

Author: Reynold MasonReynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.